Electoral Backgrounders are published by the Australian Electoral Commission (AEC) to provide an introduction to electoral law, policy and procedures for the information and guidance of all interested parties.

Purpose of this Backgrounder

To provide guidance on authorisation requirements for electoral communications that relate to a federal election.

The contents of this Backgrounder are a guide only. The AEC does not have the authority to approve electoral communications for publication, nor does the AEC provide legal advice on whether a particular electoral communication complies with the legislative requirements. Communications are assessed on a case-by-case basis to determine whether an authorisation is required and what form the authorisation should take and ultimately it is for the courts to decide on the interpretation of the law in any particular case. Accordingly, if you are in doubt about the interpretation of the law in particular circumstances, you should seek your own independent legal advice.

The AEC’s general guidance is – ‘when in doubt, authorise it’.

Who is this Backgrounder for

This Backgrounder explains the authorisation requirements for electoral communications. It is relevant for:

candidates;

political parties; and

any other person or entity that is making or considering electoral communications.

The authorisation requirements for referendum communications or political communications that are broadcast align with the authorisation requirements for electoral communications.

Political communications that are broadcast by television and radio broadcasters continue to be covered by the relevant broadcast legislation which includes authorisation requirements that align with the requirements in the Electoral Act.

What communications need to be authorised

Q. What communications require an authorisation?

A. The following communications need to be authorised:

electoral communications;

referendum communications; and

political communications that are broadcast.

This Backgrounder provides guidance of the authorisation requirements for electoral matters. The authorisation requirements for referendum communications and political communications align with these requirements.

Q. What is an electoral communication?

A. An electoral communication is the communication of ‘electoral matter’:

in the form of ‘paid for’ advertisements, including where all or only part of the distribution or production of the advertisement was ‘paid for’;

in the form of promotional items, such as stickers, fridge magnets, leaflets, flyers, pamphlets, notices, posters and how-to-vote cards; or

by, or on behalf of, a disclosure entity, that is intended to affect voting in a federal election.

Q. What is ‘electoral matter’?

A. ‘Electoral matter’ is matter that is communicated, or intended to be communicated, for the dominant purpose of influencing the way electors vote in an election of a member of the House of Representatives or of Senators for a State or Territory (sections 4(1) and 4AA of the Electoral Act).

Section 4AA contains further guidance to determine whether a matter is an electoral matter. For example, unless the contrary is proved, the dominant purpose of a communication is presumed to be electoral matter (by subsection 4AA(3)), if the matter expressly promotes or opposes:

a political entity, to the extent that the matter relates to a federal election; or

a member of the House of Representatives or a Senator, to the extent that the matter relates to a federal election.

The following matters must be taken into account when determining the dominant purpose of a communication or intended communication of matter (under subsection 4AA(4)):

the accessibility of communicated matter – where a matter is communicated publicly, whether universally to the public or a section of the public, it is more likely to be electoral matter;

the source of communicated matter – where a matter is communicated publicly by a political entity or political campaigner, it is more likely to be electoral matter;

the content of the communication – where a matter contains an express or implicit comment on one of the categories mentioned in subsection 4AA(1), it is more likely to be electoral matter;

the intended audience of the communication – where the intended audience of a communication is electors, it is more likely to be electoral matter;

the audience’s consent – where a recipient or intended recipient of a communication has not requested or otherwise invited the communication, that is, it is unsolicited, it is more likely to be electoral matter.

Q. Who or what is a ‘disclosure entity’?

A. Communication by or on behalf of a disclosure entity is electoral communication. A ‘disclosure entity’ is defined in section 321B of the Electoral Act to include:

a registered political party;

a political campaigner (within the meaning of Part XX);

a third party (within the meaning of Part XX);

an associated entity (within the meaning of Part XX);

current members of Parliament;

candidates in a federal election (including a person who was a candidate for the House of Representatives in the previous 4 years, or for the Senate in the previous 7 years); and

any other person or entity that has to lodge a donation or electoral expenditure return under Part XX of the Electoral Act.

A ‘disclosure entity’ that is not an individual is required to include more details in their authorisation of an electoral communication (e.g. see Items 1 and 2 of the table in subsection 321D(5) of the Electoral Act).

Who authorises an electoral communication

Q. Who is responsible for authorising an electoral communication?

A. The notifying entity is responsible for ensuring an electoral communication has an appropriate authorisation (subsection 321D(5)).

Q. Who or what is the 'notifying entity'?

A. A ‘notifying entity’ is defined in subsections 321D(1) and (2) of the Electoral Act to be:

for a paid electoral advertisement, the person who approved the content of the electoral advertisement (whether or not the person who approved the content paid for the distribution or production of the advertisement); or

for a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card, the person who approved the content of the matter that is communicated; or

for a matter that is communicated on behalf of a disclosure entity, the disclosure entity (whether or not that entity pays for the communication of the matter).

The ‘notifying entity’ is responsible for ensuring that certain particulars set out in the table in subsection 321D(5) are included in any communications that contain ‘electoral matter’. The particulars that are required to be notified depend on the form of the communication as well as on whether it is authorised by a ‘disclosure entity’.

Note that the person or entity who authorises the communication may also have a disclosure obligation under Part XX of the Electoral Act if they incur expenditure on electoral communications above the disclosure threshold.

What particulars must be included in the authorisation of an electoral communication

Q. What are the authorisation particulars?

The relevant authorisation particulars that are required to be included in each type of communication that contains electoral matters are set out in the table in subsection 321D(5) of the Electoral Act:

Required particulars

Item

If…

the following particulars are required…

1

the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by a disclosure entity that is not a natural person

(a) the name of the entity (as included in the most recent return given in relation to the entity under Part XX, if a return has been given in relation to the entity under that Part);

(b) the address of the entity;

(c) the name of the natural person responsible for giving effect to the authorisation;

(d) the name of the printer who printed the communication;

(e) the address of the printer

2

the communication is any other communication authorised by a disclosure entity that is not a natural person

(a) the name of the entity (as included in the most recent return given in relation to the entity under Part XX, if a return has been given in relation to the entity under that Part);

(b) the relevant town or city of the entity;

(c) the name of the natural person responsible for giving effect to the authorisation

3

the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by a disclosure entity who is a natural person

(a) the name of the person;

(b) the address of the person;

(c) the name of the printer who printed the communication;

(d) the address of the printer

4

the communication is any other communication authorised by a disclosure entity who is a natural person

(a) the name of the person;

(b) the relevant town or city of the person

5

the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by an entity that is not a disclosure entity or a natural person

(a) the name of the entity;

(b) the address of the entity;

(c) the name of the printer who printed the communication;

(d) the address of the printer

6

the communication is any other communication authorised by an entity that is not a disclosure entity or a natural person

(a) the name of the entity;

(b) the relevant town or city of the entity

7

the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by a natural person who is not a disclosure entity

(a) the name of the person;

(b) the address of the person;

(c) the name of the printer who printed the communication;

(d) the address of the printer

8

the communication is any other communication authorised by a natural person who is not a disclosure entity

(a) the name of the person;

(b) the relevant town or city of the person

Authorisations for written communications

Q. What authorisation particulars must be included on a sticker, fridge magnet, leaflet, flyer, pamphlet, notice or a poster?

A. The table in subsection 321D(5) of the Electoral Act provides the particulars required if the communication of the ‘electoral matter’ is by a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card:

where the person who authorised the communication is an individual, the name of the individual, a full street address including suburb or locality at which the person can be contacted and the name and full street address of the printer (item 3 or 7 of the table in subsection 321D(5));

where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the address of the entity (e.g. where the entity has a principal office or business premises, the full street address, suburb or locality of the office or premises, otherwise a full street address where the natural person responsible for giving effect to the authorisation can be contacted), the name of the natural person within the disclosure entity responsible for giving effect to the authorisation and the name and a full street address of the printer (item 1 of the table in subsection 321D(5));

where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity, a full street address of the entity (e.g. where the entity has a principal office or business premises, the full street address, suburb or locality, otherwise a full street address where the natural person responsible for giving effect to the authorisation can be contacted) and the name and a full street address of the printer (item 5 of the table in subsection 321D(5)).

A PO Box address is not sufficient for the street address of the person, entity or printer.

Q. What authorisation particulars must be included on a how-to-vote card?

A. A how-to-vote card is a form of written communication that requires the inclusion of authorisation particulars. The authorisation requirements for how-to-vote cards are the same as for a sticker, fridge magnet, leaflet, flyer, pamphlet, notice or a poster (see above).

The authorisation particulars are only required to be at the end (or bottom) of the printed material in a font size that can be read by a person with 20/20 vision without the use of any visual aid. Under the former authorisation requirements (before 15 March 2018), the authorisation particulars were required to appear on both printed sides of the how-to-vote card. This is no longer the case.

Q. What authorisation particulars must be included in any other form of written communication (other than communications published in newspapers or journals)?

A. The table in subsection 321D(5) of the Electoral Act (items 2,4,6,8) provides the particulars required if the communication of the ‘electoral matter’ is by any form other than a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card. Primarily the authorisation must include:

where the person who authorised the communication is an individual, the name of the individual, the relevant town or city of the person;

where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the relevant town or city of the entity, the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;

where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity and the relevant town or city of the entity.

The relevant town or city will depend on circumstances of the individual or entity authorising the communication:

if the authoriser has a principal office, the town or city in which the office is located; or

if the authoriser does not have a principal office but does have premises from which the entity operates, the town or city in which the premises of the entity is located; or

otherwise:

for an individual, the name of the town or city in which the person lives; or

for an entity, the name of the town or city of the individual who gives effect to the authorisation lives.

Q. Where must the authorisation particulars appear in the written communication?

A. The authorisation particulars for all printed material must be at the end (or bottom) of the printed material in a font size that can be read by a person with 20/20 vision without the use of any visual aid (item 1 of section 9 of the Determination).

Authorisations on electoral advertisements published in newspapers and journals

Q. Do the authorisation particulars for electoral matter published in newspapers and journals differ from the authorisation particulars for other types of written communications?

A. Yes. The authorisation particulars for written material are set out in subsection 321D(5) of the Electoral Act and will depend on who is responsible for the electoral communication. However, subsection 9(2) of the Determination provides an exception to the requirement to include the printer details. The name and address of the printer are not required in the authorisation if these details are notified elsewhere in the newspaper or journal.

Item 1 of the table at subsection 9(1) of the Determination requires that the authorisation particulars must be notified at the end (or bottom) of the printed material, and in a font size that can be read by a person with 20/20 vision without the use of any visual aid.

Authorisations for text messages

Q. Do text messages require an authorisation?

A. Yes. If the text message contains ‘electoral matter’ then the text message is required to include authorisation particulars (items 2, 4, 6, and 8 of the table in subsection 321D(5) of the Electoral Act).

A text message is defined under section 4 of the Determination to be an electronic message (within the meaning of section 5 of the Spam Act 2003) that is sent to an electronic address in connection with a telephone account.

Q. What authorisation particulars must be included in the text message?

A. If an authorisation is required on a text message, the authorisation particulars must include:

for an individual, the name of the person and the relevant town or city of the person;

for a disclosure entity (e.g. a registered political party), the name of the entity, the relevant town or city of the entity and the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;

for an entity that is not a disclosure entity (e.g. a company that is not an associated entity), the name of the entity and the town or city of the entity.

The relevant town or city will depend on circumstances of the individual or entity authorising the communication:

if the authoriser has a principal office, the town or city in which the office is located; or

if the authoriser does not have a principal office but does have premises from which the entity operates, the town or city in which the premises of the entity is located; or

otherwise:

for an individual, the name of the town or city in which the person lives; or

for an entity, the name of the town or city of the individual who gives effect to the authorisation lives.

Q. Where must the authorisation particulars appear in the text message?

A. If the communication is a text message, the particulars must be notified:

at the end of the message; or

if the particulars are too long to be included in the message – in a website that can be accessed by a URL included in the message (item 3 of section 9 of the Determination).

Authorisations for social media communications

Q. Do social media communications require an authorisation?

A. Depends. Social media content (e.g. communications on Facebook, Twitter, Instagram, etc.) will require an authorisation if the communication includes ‘electoral matter’ that is communicated:

by or on behalf of a disclosure entity (e.g. a candidate or a political party), or

in a paid advertisement on social media (including communications which all or part of the distribution or production has been paid for).

Q. What authorisation particulars must be included in a social media communication?

A. The table in subsection 321D(5) of the Electoral Act (items 2, 4, 6 and 8) set out the authorisation particulars which must include:

where the person who authorised the communication is an individual, the name of the person and the relevant town or city of the person;

where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the relevant town or city of the entity and the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;

where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity and the town or city of the entity.

The relevant town or city will depend on circumstances of the individual or entity authorising the communication:

if the authoriser has a principal office, the town or city in which the office is located; or

if the authoriser does not have a principal office but does have premises from which the entity operates, the town or city in which the premises of the entity is located; or

otherwise:

for an individual, the name of the town or city in which the person lives; or

for an entity, the name of the town or city of the individual who gives effect to the authorisation lives.

Q. Where must the authorisation particulars appear on social media?

A. As set out in the Determination, if the communication is communicated by social media, the particulars must be notified:

at the end of the communication; or

if the particulars are too long to be included in the communication,:

in a website accessible by a URL included in the communication; or

in a photo included in the communication (item 4 of section 9 of the Determination).

Q. Is an authorisation in the bio sufficient on Facebook or Twitter? Or does every tweet or post have to be authorised?

A. A social media page that is established by or on behalf of a disclosure entity must be authorised. It is sufficient to include the authorisation particulars in the bio or about section of the social media page.

It is then not necessary to authorise every tweet or post on that social media page. However, if a video or image containing electoral matter is posted to a social media page by or on behalf of a disclosure entity, it is recommended that an authorisation is embedded in the video or image so the authorisation details are not lost if the video or image is shared/reposted. This is recommended so voters who receive this video or image can distinguish electoral communications that are shared by or on behalf of a disclosure entity from communications from other sources.

Q. Will social media content (e.g. Facebook or Twitter) containing ‘electoral matter’ require an authorisation if it is communicated for personal purposes?

A. No. Social media content will not require an authorisation if it is communicated for personal purposes, for instance to personal friends only.

Q. If I repost an online post with my own commentary on an electoral matter, who should authorise my post: the original poster, the service provider or myself?

A. Depends. If the original post contains electoral matter that required authorisation, it must be authorised by the original communicator. If you report this original post:

as part of a paid electoral advertisement, you must authorise the advertisement

on behalf of a disclosure entity (e.g. a candidate or political party), you must authorise the reposted communication

for personal purposes, you are not required to authorise your post.

The service provider used to post both messages is not required to authorise the original post or your repost, as the service provider did not make the decision to communicate the content.

Q. In a social media post such as Facebook or Twitter, which has an embedded video, is the authorisation at the end of the video sufficient to authorise the post/tweet?

A. A video for social media with electoral matter that is likely to be shared should be authorised. The authorisation must be announced and shown at the end of the communication in the language used for the rest of the communication.

If the video is reposted or shared, by or on behalf of a disclosure entity (e.g. a candidate or political party), or as part of a paid electoral advertisement, then the repost or the account to which the video is reposted must also be authorised.

Authorisations for phone calls (including bulk voice calls)

Q. What is included as telephony?

A. Telephony is defined under section 4 of the Determination to include communication by VoIP or Skype and any communications generated by computerised auto-diallers. If the communication is telephony, the particulars must be notified at the beginning of the communication.

Q. What authorisation particulars must a notifying entity include in a call?

A. The particulars are the same as for social media and must include:

where the person who authorised the communication is an individual, the name of the person and the relevant town or city of the person;

where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the relevant town or city of the entity and the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;

where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity) the name of the entity and the relevant town or city of the entity.

The relevant town or city will depend on circumstances of the individual or entity authorising the communication:

if the authoriser has a principal office, the town or city in which the office is located; or

if the authoriser does not have a principal office but does have premises from which the entity operates, the town or city in which the premises of the entity is located; or

otherwise:

for an individual, the name of the town or city in which the person lives; or

for an entity, the name of the town or city of the individual who gives effect to the authorisation lives.

Q. When must the authorisation particulars be disclosed in a call?

A. The authorising particulars must be disclosed at the beginning of the call (item 2 of section 9 of the Determination).

A. Communications for personal purposes will not require an authorisation.

Q. If a call centre is contracted by a disclosure entity to ring people to communicate electoral matter, who authorised the material?

A. The disclosure entity has authorised the communication as they have approved the content (the script) of what was communicated by the call centre. The call centre and the provider of the telephone service used by the call centre do not authorise the matter communicated as the call centre and the telephone service provider did not make the decision to communicate the content.

Authorisations for email communications

Q. Is an email from an individual sufficient to communicate the fact that it is authorised by that individual from the disclosure entity? What if there is no physical address in the regular signature but only a post-box?

A. Emails are a form of electronic communication and the relevant disclosure details are similar to those that apply to communications by social media. Under the new definition of ‘relevant town or city’ in section 321B of the Electoral Act, the name of a town or city must be included in the authorisation as post-boxes are not sufficient. Please refer to the earlier answer regarding the authorisation requirements for text messages for the definition of ‘relevant town or city’.

Q. Is an email with a signature block that contains all required authorisation particulars sufficient?

A. Yes. As long as the notifying particulars are contained in the email, it is sufficient to contain the authorisation in the signature block.

Q. Would an email with a link to a website with a large authorisation message be better/sufficient?

A. Emails have room to include the full authorisation particulars therefore a link to a website is not sufficient.

Authorisations for websites

Q. What is a sufficient authorisation for a website? Is an authorisation required on every page, or is a link to a special page specifically authorising the specific communication required?

A. The authorisation particulars for a website that contains electoral communications are contained in the table in subsection 321D(5) of the Electoral Act (items 2, 4, 6 and 8) and which must include:

where the person who authorised the communication is an individual, the name of the person and the relevant town or city for the person;

where the communication is authorised by a disclosure entity (e.g. a registered political party) the name of the entity, the relevant town or city of the entity and the name of the natural person within the disclosure entity responsible for giving effect to the authorisation;

where the communication is authorised by an entity that is not a disclosure entity or a natural person (e.g. a company that is not an associated entity), the name of the entity and the relevant town or city of the entity.

The relevant town or city will depend on circumstances of the individual or entity authorising the communication:

if the authoriser has a principal office, the town or city in which the office is located; or

if the authoriser does not have a principal office but does have premises from which the entity operates, the town or city in which the premises of the entity is located; or

otherwise:

for an individual, the name of the town or city in which the person lives; or

for an entity, the name of the town or city of the individual who gives effect to the authorisation lives.

Q. Where should the authorisation appear on the website?

A. It is not prescribed where the authorisation should appear on a website or webpage. However, generally it would appear somewhere on each page that contains ‘electoral matter’ where it can be readily located by readers. There is a distinction between websites that are published directly by a ‘disclosure entity’ and other websites that only contain ‘electoral matter’ on some of their webpages. The AEC suggests that the landing page for a website should have the authorisation particulars where it is published by or on behalf of a ‘disclosure entity’. For more general websites, it is only necessary that the webpages that actually contain ‘electoral matter’ have the required authorisation particulars.

Authorisations for speeches

Q. Do speeches containing electoral matter need to be authorised?

A. Speeches that are communicated live at a meeting do not require authorisation (subsection 321D(4) of the Electoral Act). But any subsequent communication of that speech may require an authorisation.

Q. Who is the authorising person if I read a speech with electoral matter that has been drafted by somebody else?

A. Whether you had the opportunity to read over the speech and request edits before approving it, you as the speaker have ‘authorised’ the speech, as you have ultimate control over what you say or will not say and by reading the speech, you are approving it in the form you deliver.

Authorisations for search advertising

A. Yes. The authorisation particulars are similar to those that apply to social media.

Q. Where should the authorisation appear on the search advertising?

A. For search advertising, the particulars must be notified:

in the footer of the landing page from the URL; or

if the particulars are too long to be included in the word limit of the search advertising – in a website that can be accessed by a URL included in the search advertising (item 5 of section 9 of the Determination).

Authorisations for streamed music

Q. Does streamed music that may contain electoral matter require authorisation particulars?

A. Yes. The authorisation details are the same as for social media. The term ‘streamed music’ includes music streamed by Spotify, Google Play Music or Apple Music (section 4 of the Determination).

Q. Where should the authorisation appear in streamed music?

A. For streamed music, the particulars must be notified by being announced at the end of the communication in the language used for the rest of the communication (item 6 of section 9 of the Determination).

Authorisations for digital banner advertisements

A. Yes. The authorisation details are the same as for social media. The term ‘digital banner advertisement’ includes static or dynamic banners on websites accessed through internet browsers, or videos that stream when banner advertisements are hovered over (section 4 of the Determination).

Q. Where should the authorisation appear in a digital banner advertisement?

A. For digital banner advertisements, the particulars must be notified:

at the end of the banner; or

if the particulars are too long to be included or embedded in the banner – in a website that can be accessed by a URL included in the banner (item 7 of section 9 of the Determination).

The placement and manner of notifying the particulars for digital banner advertisements can be notified in either the static or dynamic banner, or the video.

A. Yes. The authorisation details for mobile phone applications and computer applications are the same as for social media.

Q. Where should the authorisation appear for mobile phone applications and computer applications?

A. For a mobile phone application or a computer application, the particulars must be notified:

at the bottom of the screen on which the application is open; or

if the particulars are too long to be included in the application – in a website that can be accessed by a URL included on the screen on which the application is open (item 8 of section 9 of the Determination).

Authorisations for video-sharing applications

A. Yes. The term ‘video-sharing’ includes video-sharing through websites such as YouTube, but does not include streamed radio or television (section 4 of the Determination).

Q. Where should the authorisation appear for video-sharing applications?

A. For communications by video-sharing, the particulars must be notified by being announced and shown at the end of the communication in the language used for the rest of communication (item 9 of section 9 of the Determination). Therefore, if the communication is on a video-sharing medium, the required particulars should be communicated in the form of a spoken announcement in the same language used for the rest of the communication, and cause all the required particulars to be communicated in the form of images or words, in the same language used for the rest of the communication.

Authorisations in a cinema

Q. Do films shown in a cinema that contain electoral matter require authorisation particulars to be included?

A. Yes. The authorisation details for films that contain electoral matter are the same as for video-sharing.

Q. Where should the authorisation appear for an electoral communication in the cinema?

A. For communications on a video-sharing or cinema medium, the required particulars should be communicated in the form of a spoken announcement and shown in the form of images or words at the end of the communication in the same language used for the rest of the communication (item 10 of section 9 of the Determination).

Authorisation requirements for referendum matters

A similar authorisation regime applies for the communication of referendum matters, with some modifications to reflect the different nature of such issue-based electoral events, based on the entities involved and the types of financial disclosure for referendums.

Like elections, all paid referendum advertising requires an authorisation, as do communications by registered political parties and their associated entities.

Unlike elections, recent candidates, Senate groups and donors are not specifically covered. However, persons and entities spending money on campaigning or communicating relating to the respective referendum matter in excess of the indexed financial disclosure threshold will be covered by the authorisation requirements. The relevant period for expenditure is the 12 months prior to the issue of the writ for a referendum, rather than a financial year.

Authorisation requirements for broadcast political matters and broadcasters

Q. When do the authorisation requirements apply to ‘political matters’ published by broadcasters?

A. The authorisation requirements for broadcasting apply to political matter and election matter (see Schedule 2 Broadcasting Services Act 1992). This includes electoral matter advertising. Accordingly, the authorisation requirements for broadcasting apply at all times and not just during election periods.

Q. A campaign advertisement for television features a candidate talking about her party’s policies. The candidate introduces themselves by name and mentions the name of their political party during the advertisement. Has authorisation of the communication containing electoral matter been carried out?

A. No. Although the candidate and political party have been named in the television advertisement, the advertisement must have an authorisation at the end of the advertisement, in spoken word and in images or text on-screen (Schedule 2, clause 4(2) of the Broadcasting Services Act 1992 and section 10 of the Determination). The authorisation particulars at the end of the advertisement must include the name of the person who approved the advertisement and the town or city in which the person lives. If the electoral communication is authorised by an entity that is not a natural person (e.g. a political party), the authorisation must also include the entity (party) name.

Q. What must be included in the authorisation of a broadcast communication?

A. The authorisation particulars will depend on the person or entity who is responsible for the political communication. Particulars that are required by different entities to be notified are at subsection 79A(6) of the Australian Broadcasting Corporation Act 1983, clause 2 of Schedule 2 to the Broadcasting Services Act 1992, and at subsection 70A(6) of the Special Broadcasting Service Act 1991. These include the name of the person or entity, the town or city in which the person lives or the relevant town or city of the entity and, if it is a disclosure entity that is not a natural person, the name of the natural person responsible for giving effect to the authorisation.

Q. Where should an authorisation appear for a broadcast communication?

if the communication is broadcast on a radio service, the particulars must be announced at the end of the communication in the language used for the rest of the communication (item 1);

if the communication is broadcast on a television service, the particulars must be announced and shown at the end of the communication in the same language as the communication (item 2).

Accordingly, if the political matter is broadcast on a television service, the broadcaster should cause the required particulars to be broadcast in the form of a spoken announcement in the same language as the rest of the communication and cause all the required particulars to be broadcast in the form of images or words in the same language as the rest of the communication.

The requirement for particulars to be both announced and shown where communication is a broadcast enables access for vision and hearing-impaired voters. The requirement for particulars to be in the same language of the communications ensures that members of the target audience for the communication can understand the authorisation information.

Q. What is the electronic media blackout and when does it occur?

Under Schedule 2 to the Broadcasting Services Act 1992, there is an election advertising blackout on all electronic media from the end of the Wednesday before polling day to the end of polling on the Saturday. This three-day blackout effectively provides a ‘cooling off’ period in the lead up to polling day, during which political parties, candidates and others are no longer able to purchase time on television and radio to broadcast political advertising.

The electronic media blackout provisions and other provisions relating to the broadcasting of ‘political matter’ are administered by ACMA.

Q. Where do I make complaints about broadcast communications or broadcasters?

What electoral communications do not need to be authorised

A. No. A private communication by a person to another person who is known to the first person does not require an authorisation.

Q. What other communications do not require an authorisation?

A. Electoral communications do not require an authorisation (under subsections 4AA(5), 321D(3) or 321D(4) of the Electoral Act ) where the communication:

forms or would form part of the reporting of news, the presenting of current affairs or any genuine editorial content in news media;

is or would be by a person for the dominant purpose that is a satirical, academic, educative or artistic purpose, taking into account other relevant considerations including the dominant purpose of any other communication of matter by the person;

is or would be by or to a person who is a Commonwealth public official (within the meaning of the Criminal Code) in that person’s capacity as such an official;

is or would be a private communication to a political entity (who is not a Commonwealth public official) in relation to public policy or public administration;

occurs or would occur in the House of Representatives or the Senate, or is or would be to a parliamentary committee;

is or would be on clothing or any other item intended to be worn on the body;

forms or would form part of a promotional item (such as a balloon, pen, mug, tote bag or marquee, but not a sticker or fridge magnet) that only contains the name, logo or other identifying feature of the notifying entity;

is skywriting;

is graffiti;

is or would be opinion polling and research relating to voting intentions at a federal election or by-election;

is or would be an internal communication of a notifying entity;

is or would be real-time communications, where the speaker and any disclosure entity on whose behalf the speaker is communicating, are, or could, reasonably be identified (but not any later communication); or

is or would be a letter or card that contains the name and address of the notifying entity.

Misleading or deceptive electoral advertisement and other communications

Q. Does the Electoral Act require truth in electoral advertising?

A. No. The AEC has no role in regulating the political content of electoral advertising. The AEC is responsible for ensuring, as far as possible, that electoral advertising does not mislead or deceive voters about the way in which they must cast their vote. For example, how-to-vote cards should not advocate optional preferential voting, because, with limited exceptions, the Act clearly requires full preferential voting. Incomplete ballot papers are informal and unable to be counted.

Q. What does section 329 of the Electoral Act cover?

A. Subsection 329(1) of the Electoral Act makes it an offence to print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote. Section 329 applies not only to printed matter but also to electoral advertisements broadcast on radio, television, the internet or by telephone. Subsection 329(5) provides that in a prosecution of an offender, it is a defence if it is proved that the person did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead an elector in relation to the casting of a vote. The two leading court decisions on the scope of section 329 of the Electoral Act are in Evans v Crichton-Browne (1981) 147 CLR 169 and Peebles v Honourable Tony Burke [2010] FCA 838. At paragraph 10 of the decision in the Peebles case the Court stated that:

“It is clear from reading the entire reasons for judgment of the High Court in Crichton-Browne that the prohibition in s 329 concerns misleading or deceptive conduct which might affect the process of casting a vote rather than the formation of the political judgment about how the vote will be cast. That is, the section concerns conduct which might, for example, lead a voter either to fail to record a valid vote or to record a valid vote but not for the candidate or candidates of the voter's choice. An obvious example would be information which told a voter how to go about completing the ballot paper which was wrong and would result in the casting of an informal vote.”

Accordingly, the test that is applied by the AEC is examining a publication under section 329 is whether the publication merely goes towards the ‘formation of the judgment’ as to who to vote for, rather than the actual act of marking the ballot paper. It is only the later type of publication that misleads a voter that is prohibited. The AEC notes that the distinction between these two things is a question of fact and degree.

Q. When does section 329 of the Electoral Act apply?

A. Unlike section 321D of the Electoral Act which applies at all times, subsection 329(1) is in force only during the formal election campaign. The ‘relevant period’ which is defined in section 322 is the period commencing on the issue of the writs for the election and expiring at the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election.

Q. What is the penalty for a breach of subsection 329(1) of the Electoral Act?

A. The maximum penalty for a contravention of subsection 329(1) is a fine not exceeding 10 penalty units or imprisonment for a period not exceeding six months, or both, for a person; or a fine not exceeding 50 penalty units for a body corporate.

What if an electoral communication is not authorised

Q. Is it an offence to not authorise an electoral communication as required?

A. Yes, the penalty for a breach of the authorisation requirements by:

an individual is up to 120 penalty units (at 1 January 2019 a penalty unit was $210, so a penalty of up to $25,200);

a body corporate, is five times the penalty for an individual (i.e. up to 600 penalty units or up to $126,000).

Q. Who can I contact about unauthorised electoral communication?

A. Enquiries or complaints about unauthorised electoral communications can be made to:

Complaints to the AEC should include as much information as possible to enable assessment of the alleged breach. If possible, complaints should be accompanied by an original copy of the communication, or for online communications a link to the relevant web page and an image indicating the potential infringing communication (an image is required given the transient nature of online communications, quite often by the time the AEC investigates an online complaint the communication has since been removed or changed).

If an original copy of the communication cannot be obtained, the online complaints form enables a copy of the entire document to be attached and forwarded to the AEC. But some care needs to be taken to ensure that the attachments are less than 10 megabytes in size and that a read receipt is requested to ensure that the complaints actually are received through the AEC’s firewall.

Information relevant to a complaint, allegation or investigation that is, or could become, subject to Part XXA or Part XXI proceedings (dealing with offences), will not be provided to any person not directly involved with the matter. In all cases after a complaint has been received, the AEC will not provide any further information to the complainant until the investigation has been completed and any subsequent legal proceedings have been completed. When appropriate the AEC will write to the complainant advising of its decision and actions.

Q. Who can seek an injunction under the Electoral Act?

A. The Electoral Commission and candidates in an election are able to seek an injunction under section 383 of the Electoral Act against any conduct that is or would contravene the Electoral Act. A court ordered injunction can prohibit certain conduct or to require certain conduct to be performed.

Q. How will the AEC investigate non-compliance with electoral communication requirements?

The following is a guide as to courses of action that the AEC will take in response to an apparent or alleged breach of the Electoral Act. The AEC reserves the right to take any other course of action it considers necessary in the circumstances. Further, while compliance with the law is important at all times, the AEC recognises that some breaches of the law are more serious than others. These are described below, for convenience, as ‘more serious’ and ‘less serious’ instances of non-compliance and are used to distinguish significant instances of non-compliance from non-compliance with the precise requirements of the law.

More serious non-compliance is a matter of concern for the AEC at all times. More serious non-compliance involves instances where the purpose of the law, for example, the prevention of anonymous electoral advertising, is undermined by the publication of electoral advertising that fails to provide the elector with the ability to discern the identity of the person responsible for the advertisement. Advertisements which carry the words ‘published by people concerned about…’ represent more serious matters as they do not provide any information as to who is responsible for the advertisement.

While all instances of non-compliance with the law are serious matters, those that occur during federal election periods have the potential to have a more significant and direct impact on the casting of votes. In light of their capacity to directly affect the casting of votes in a federal election, misleading or deceptive publications receive a high priority in the AEC’s compliance activities. Outside of the periods during which provisions relating to misleading or deceptive publications operate, the AEC prioritises anonymous electoral advertisements over advertisements containing less serious instances of apparent non-compliance.

If the AEC considers a communication with ‘electoral matter’ does not include the required authorisation particulars, the AEC will generally write to the relevant person to request that the communication is withdrawn until such time as the communication is properly authorised to comply with the law. If there is continued non-compliance or a more serious breach of the Electoral Act, the AEC may seek an injunction or apply to the Courts to impose a civil penalty.

Provisions relating to the actions of broadcasters communicating ‘political matter’ are administered by ACMA.

Publications

The AEC has available a number of publications for people interested in the electoral process including: